Courting Diversity

Hours after becoming the Harvard Law Review’s first Black president, a young Barack Obama was presented with more good news: Abner Mikva, an associate judge on the powerful and influential DC Circuit Court of Appeals, was offering the first-year law student a clerkship. A year with Mikva, one of the nation’s most reliable “feeder judges,” was considered a pipeline to both the Supreme Court and a prominent legal career. Nonetheless, the future president rejected the offer without hesitation. He coolly explained that, though he was flattered, the position would do little to help him achieve his goals of reforming the country: “If you’re going to make change,” he decreed, “you’re not going to do it as a Supreme Court clerk.”

Many within the federal judiciary disagree with President Obama’s claim. This past June, Justice Sonia Sotomayor admitted that not clerking was her “one professional regret.” The best explanation the Associate Justice could surmise at the time was for why she did not clerk was “I was stupid.” Nearly 30 years of experience working with clerks convinced her that the position was nothing to be scoffed at. Indeed, a Supreme Court clerkship is one of the most powerful internships in American politics. The 36 newly-graduated law students who descend upon Washington each fall are endowed with a surprising amount of authority. Behind the scenes, clerks are responsible for writing the first drafts of opinions and spend hundreds of hours debating the justices on issues of deep constitutional importance.

Above all, clerks play a decisive role in the selection of writs of certiorari, or certs—the cases to be heard by the court. While the Supreme Court’s docket has shrunk in recent years from roughly 150 cases per term to about 80, the number of petitions filed by hopeful claimants has continued to climb. This phenomenon led to the advent of the “cert pool.” Under this system, each petition is assigned to an individual clerk who is responsible for writing a brief memo with the facts and legal questions presented by the potential case. Most importantly, the memo contains a recommendation as to whether the court should accept or deny the petitioner a writ of certiorari. Overwhelmingly, the Justices side with their clerks’ suggestions: For example, during his time on the Supreme Court, Justice Harry Blackmun deferred to his clerks’ judgment 98 percent of the time.

Given the significant influence these legal apprentices brandish, their relative lack of diversity is alarming. If the nation’s highest court were considered an executive department, it would rank among the worst at creating a diverse working environment. Historically, the bench has proven hesitant to allow anyone but white men in its ranks, and this trend has remained largely unchallenged in the 21st century. In fact, since 2005, 85 percent of clerks have been white, and nearly 70 percent have been men. This behavior has not been split along ideological lines, either: Justice Ruth Bader Ginsburg has hired only one Black clerk in her 25-year tenure on the court, and only 8 percent of Chief Justice John Roberts’ clerks have identified as minorities.

Ironically, the court’s lone Black justice, Clarence Thomas, is also its chief apologist. He has deflected blame for the staggering lack of representation toward the candidates themselves. At a 2010 congressional hearing, Thomas claimed that “the reality is that Hispanics and Blacks do not show up in any great numbers.” While on the surface Thomas’ argument rings true—people of color are less likely to apply for federal clerkships—this discrepancy can be readily explained by the fact that nearly a fifth of minority applicants believe they are discriminated against. Whether the justices are merely complicit or actually contribute to the lack of diversity among Supreme Court clerks can be debated endlessly; however, with the exception of Justice Sotomayor, they certainly do not make a concerted effort to diversify their ranks. “If diversity were a priority,” claims Georgetown Law Professor Sheryll Cashin, “it would not be hard to find qualified people of color even in the elite universe that some of the justices are used to.”

"Thus, the case for improved racial and gender parity among Supreme Court clerks transcends equality for its own sake."

Moreover, the Court’s ambivalent attitude toward diversity has real consequences for its caseload. Even former Chief Justice William Rehnquist, who was infamously dismissive of clerk influence, acquiesced that unconscious bias had the potential to seep into cert pool memos. It is not a stretch to suggest that any particular memo is somewhat informed by the clerk’s background. Although white males can reflect a wide variety of ideologies, their removal from the distinct challenges and experiences that many marginalized communities face narrows their range of empathy and thus influences the cases they consider for certiorari. An increase in minority representation in the clerkship has the potential to broaden the range of potential cases. For example, in the case of welfare and government benefits, Christopher Benson argues in the Harvard BlackLetter Law Journal that if there were more minority representation among clerks, particularly among African-Americans and Hispanics—groups who receive government benefits at a disproportionately high rate—the clerks and the Court would be more empathetic to their plight and more likely to award writs to welfare cases.

Perhaps the primary benefit to be reaped from a representative clerk class, however, is the promise of a diverse court in the future. Five of the Court’s nine justices have served as Supreme Court clerks, and that tally rises to include all seven white members when counting district and circuit clerkships. Recommendations from the nation’s most preeminent legal minds jumpstart clerks’ careers and provide a direct path into the federal judiciary. Furthermore, a completed term as a Supreme Court clerk now carries a six-figure bonus: Law firms such as Wilkinson Walsh extend a $350,000 sweetener to all Supreme Court alumni. Such a big payday provides a degree of financial security, which could make the decision to take a pay cut and enter the federal judiciary later on easier. This is not theoretical, either: Sotomayor has cited financial considerations as one of the determining factors in her decision to forgo a clerkship. Thus, the case for improved racial and gender parity among Supreme Court clerks transcends equality for its own sake. It carries tangible benefits not only for people of color, but also for the country as a whole by way of delivering a legal system representative of the nation.

After Obama stated his intention to turn down Mikva’s clerkship, then-girlfriend Michelle Robinson was dumbstruck. “You’re kidding me,” she responded. The future first lady was right: A federal clerkship is one of the most influential legal positions in the US. With the potential to steer discourse and have a bright future in the legal field, clerks are power players within the federal judiciary. While the clerks’ uniformity is discouraging, Supreme Court justices have a real opportunity to transform the status quo. The court has reversed precedent in the past, so there is no reason to think that the court will cite stare decisis on clerk diversity. While all judicial institutions, from law schools to circuit judges, play a role in encouraging diversity, the Supreme Court must take the lead in setting an example for its legal colleagues and the nation as a whole.

Photo: “US Supreme Court

About the Author

Luke Angelillo '21 is a Staff Writer for the US Section of the Brown Political Review. Luke can be reached at luke_angelillo@brown.edu

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